As a seasoned police oversight practitioner, every time there are proposed changes to the structure of police oversight agencies and their relationship to the police departments they are entrusted to oversee, I ask several critical questions. What is the need such changes would serve? Are the changes operationally feasible and would their implementation affect the safety of law enforcement officers? Will their implementation increase transparency and accountability? Are the changes critical to public trust? And lastly, are the changes devoid of misconceptions and biases?
Although the proposed ballot initiative urges the creation of a new police oversight entity with broad powers of oversight and control over the police department, it fails to answer the question of what purpose it would truly serve by such a drastic change. The Berkeley police department is not the Detroit, St. Louis or Oakland police departments. There isn’t a history of officer-involved shootings, excessive use of force or malicious intent.
Notwithstanding the Center for Policing Equity findings on stop statistics or the settlement of the court case dealing with crowd control directives during the Black Lives Matter demonstrations in 2014, the Berkeley Police Department has been responsive and demonstrated a willingness to engage the Police Review Commission in a collaborative effort. The PRC and police department have cooperated in making changes to a number of policies, including The Right to Watch, Treatment of Transgender Individuals, Impartial Policing and the newly created Body Worn Cameras General Order.
The stipulation that the new commission would “have the power to review and modify all written and unwritten policies, practices, and procedures of whatever kind and without limitation, in relation to the Berkeley police department,” is only viable if it is made “in conjunction with the Berkeley Police Department and Command Staff.” This process was very successful at the BART police department in recent changes to its Use of Force Policy from the discretionary “reasonable use of force” to a “minimal use of force” standard.
Although ballot measure proponents profess that their work is geared at increasing transparency and accountability, they betray their intent by the obscurity of their actions. Three currently sitting commissioners (George Lippman, Andrea Prichett and Sahana Matthews) subverted a 2017 request by the City Council to propose changes to the PRC model. Instead of having an open and frank discussion at the PRC, those commissioners undermined the responsibility of the PRC by failing to include the entire commission in the process of writing the proposed ballot initiative. They constructed it behind closed doors. This was a betrayal to their duty to the PRC and, as an end result, alienated other commissioners on the PRC and the police department.
The proposal effectively creates a bureaucracy with intricate appointment structures and unnecessary staff, increasing its budget by 125%. It strives to undermine the will of the voters by expressly acquiring the power to circumvent the City Council and the mayor, and redefines the structure of the city by unbalancing the City Charter. This is clearly an example of non-professionals and inexperienced advocates using a “throw everything and see what sticks” process of changing models of oversight.
On the other hand, the Berkeley Police Department and the police union need to move away from any and all “nonnegotiable” attitudes that create extreme proposals and add to the belief that only by force can changes occur. It is time to move toward a “preponderance of the evidence” standard (as most other police oversight agencies in the Bay Area). It is time that internal investigations are part of the oversight process and that discipline is a shared responsibility between the command structure and the community the department serves. It is time to move to a one-year standard for completion of investigations and for Caloca hearings to not be paid for by the taxpayers of Berkeley. (That refers to Caloca vs. County of San Diego, a California Court of Appeals case granting administrative review after a finding on an allegation.)
It is time to move toward obligatory department reporting as well as review of all use of force incidents.
Unfortunately, it is too late to follow the BART process and engage a consultant to interview all stakeholders and make recommendations based on facts and proven practices. The PRC has now formed a new subcommittee, which I chair, that intends to present to the City Council in May concrete and practical changes to the PRC that will increase transparency, accountability and implement unbiased progressive policies. With input from the community and the police department, it will be done on the record. At a minimum, it will give the City Council an alternative ballot measure. I will be asking the City Council on Tuesday night to postpone action of the proposed ballot measure until then.
Oversight is a conversation, a coming together to do what is right and a belief in a shared responsibility in public safety. City Council needs to reject this misguided, poorly written and overreaching initiative in its present form.